BGH: hyperlinks, freedom of expression and copyright infringing software

Already decided on 14 October 2010, even though only published in its entirety now, has been a decision (case reference: I ZR 191/08; 'AnyDVD') by the German Federal Supreme Court (Bundesgerichtshof) concerning a lawsuit brought by several music companies against Heise Verlag, an online publisher specializing in IT and computer news. The claimaint's took objection to reports published on Heise’s website which included links to a third party website (SlySoft) that offered software that allowed circumventing copy protection for DVDs.

While the lower courts, the Regional and Higher Courts of Munich I, had held that Heise's online reports were itself copyright infringing, the First Civil Senate of the Bundesgerichtshof took the view that adding the links on Heise's website which linked to SlySoft's website (where SlySoft offered copyright right infringing software) was covered by the constitutional right of freedom of press and freedom of opinion under Article 5(1) German Constitution (Grundgesetz). Further, in cases where the actual text of a report was protected by freedom of expression and freedom of press, the included links would also be afforded equal protection. The judges stressed that the purpose of the links on Heise's website was not only to technically facilitate to access the SlySoft's website but the links were to be regarded as part of Heise's reporting because they were complementing and 'backing up' what was reported with additional information. The fact that the Heise was aware that the software offered on SlySoft's website was copyright infringing did not change this and so could not be blamed on Heise since the information interest of the general public was of higher importance.

The judges also argued that reports on illegal conduct (here: that SlySoft offering copyright infringing software) could be of particular public information interest. It was also important that Heise had clearly indicated in its report that SlySoft's software was copyright infringing. In this context the Bundesgerichtshof explained that protection of Article 5(1) Grundgesetz encompassed freedom of expression and freedom of media in all its aspects and was thus not limited to the content of the report, but it also included the (outer) form of this reporting. As such, it was up to Heise itself, as the subject entitled to the fundamental right under Article 5(1) Grundgesetz, to decide which form of presentation it chose for its reporting. This also encompassed the decision whether additional information about a company and its products (here: SlySoft) should be expressly used in the report and it could include the decision to publish links to SlySoft's website.

The court, inter alia, based its decision on Article 95 a German Copyright Act which is based on Article 6 of the Copyright Directive (Directive 2001/29/EC) (“Obligations as to technological measures”). Intriguingly, the Bundesgerichtshof interpreted Article 95 a German Copyright Act not only in the light of Article 5(1) Grundgesetz but also in light of Article 11 (1) of the Charter of Fundamental Rights of the European Union which stipulates as follows “(e)veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Article 11 (2) provides that “(t)he freedom and pluralism of the media shall be respected.” Referring to the ECJ's precedent in Connolly/Commission (C-274/99 P), the Bundesgerichtshof also stressed that content and quality of a report are irrelevant when it comes to the application of Article 11 of the Charter of Fundamental Rights of the European Union.

This interesting decision can be retrieved from the Bundesgerichtshof's website here (in German).